I. SUMMARY

1. On November
4, 2002, the Inter-American Commission on Human Rights (hereinafter the
“Commission”) received a petition dated October 31, 2002 from the Texas
law firm of Sergi & Associates (hereinafter the “Petitioners”) against
the Government of the United States of America (hereinafter the “State”
or “United States”). The petition was presented on behalf of Mr.
Roberto Moreno Ramos (hereinafter “Mr. Moreno Ramos” or “Moreno Ramos”),
a citizen of Mexico who is incarcerated on death row in the State of
Texas. The petition indicated that Mr. Moreno Ramos was convicted on
March 18, 1993 of the capital murder of his wife and two children and
sentenced to death on March 23, 1993. The petition also indicated that
the Texas trial court had scheduled a hearing for November 12, 2002 to
determine whether to schedule Mr. Moreno Ramos’ execution and that the
District Attorney was seeking a February 12, 2003 execution date. As of
the date of this report, the Commission has not been apprised of an
established date for Mr. Moreno Ramos’ execution.

2. The petition
alleges that the State is responsible for violations of Mr. Moreno
Ramos’ rights under Articles I, II, XVIII, XXV, and XXVI of the American
Declaration of the Rights and Duties of Man (hereinafter the “American
Declaration” or the “Declaration”), based upon deficiencies in the
fairness of the criminal proceedings against him, including an alleged
failure on the part of the State to notify Mr. Moreno Ramos of his
rights to consular notification and access at the time of his arrest in
violation of Article 36 of the Vienna Convention on Consular Relations.
The Petitioners also claim that Mr. Moreno Ramos has exhausted domestic
remedies, or has been denied access to the remedies under domestic law
or has been prevented from exhausting them, in respect of the
allegations raised before the Commission, and therefore that his
petition is admissible.

3. The State
claims in response to the petition that Mr. Moreno Ramos has failed to
exhaust his domestic remedies as required under the Commission’s Rules
of Procedure, and that the issues raised by the Petitioners are either
beyond the Commission’s competence, are barred from consideration based
on duplication of proceedings, or are without merit.

4. As set forth
in the present report, having examined the information available and the
contentions on the question of admissibility, and without prejudging the
merits of the matter, the Commission decided to admit the claims in the
present petition relating to Articles I, II, XVIII, XXV, and XXVI of the
American Declaration and to continue with the analysis of the merits of
the case.

II. PROCEEDINGS
BEFORE THE COMMISSION

5.
Following the receipt of the Petitioners’ petition, which was designated
as Petition P4446/02, the Commission transmitted the pertinent parts of
the complaint to the United States by means of a note dated November 8,
2002 with a request for observations within two months as established by
the Commission’s Rules of Procedure. By note of the same date, the
Commission informed the Petitioners that the pertinent parts of their
petition had been transmitted to the State.

6.
Also on November 8, 2002, the Commission granted precautionary measures
in favor of Mr. Moreno Ramos, whose execution date was, at that time, to
be scheduled at a hearing before the trial court on November 12, 2002.
The Commission requested that the United States take the necessary
measures to preserve Mr. Moreno Ramos’ life pending the Commission’s
investigation of the allegations in his petition.

7. In
a note dated November 13, 2002, the Permanent Mission of the United
States to the Organization of American States informed the Commission
that it was coordinating with the State of Texas and the Office of the
Legal Advisor in the United States Department of State to provide a
response to the Commission’s request for precautionary measures in
relation to Mr. Moreno Ramos. In a subsequent note to the Commission
dated January 6, 2003, the State requested an extension of time of 30
days within which to respond to the Commission’s request. By
communication to the State dated January 21, 2003, the Commission
granted the State’s request for an extension of time.

8. By
means of a note dated February 13, 2003 and received by the Commission
on February 14, 2003, the State transmitted its response to the
Petitioners’ petition. In a note dated February 20, 2003, the
Commission transmitted the pertinent parts of the State’s response to
the Petitioners.

9. On
March 31, 2003, the Commission received from the Petitioners their
observations dated March 28, 2003 regarding the State’s response of
February 13, 2003. By note dated April 8, 2003, the Commission
transmitted the pertinent parts of the Petitioners’ March 28, 2003
observations to the State with a request for a response within 30 days.
The Commission did not receive any further observations from the State
within the prescribed time period.

III. POSITIONS OF
THE PARTIES

A.Position
of the Petitioners

10.
According to the petition, Roberto Moreno Ramos is a citizen of Mexico
who is incarcerated on death row in the State of Texas. The petition
indicates that Mr. Moreno Ramos was convicted on March 18, 2003 of the
capital murders of his wife and two children and sentenced to death on
March 23, 2003.

11. The
Petitioners argue that the Commission has jurisdiction to entertain
their petition, on the basis that the American Declaration of the Rights
and Duties of Man is binding on the United States as a member of the
Organization of American States and the Commission is competent to
promote the observance of and respect for the rights in the Declaration
in respect of all OAS member states.[1]

12. With regard to
the admissibility of the petition, the Petitioners argue that Mr. Moreno
Ramos has exhausted available domestic remedies within the United
States, or has been denied access to the remedies under domestic law or
has been prevented from exhausting them, in respect of the allegations
raised before the Commission. In support of this allegation, the
Petitioners provided information concerning the various legal
proceedings pursued by Mr. Moreno Ramos before the U.S. domestic courts.

13. In
particular, the Petitioners’ information indicates that on direct
appeal, the Texas Court of Criminal Appeals affirmed Mr. Moreno Ramos’
conviction on June 26, 1996 and the United States Supreme Court denied
certiorari from that decision on April 28, 1997. Mr. Moreno Ramos next
filed a post-conviction application, which was denied by the Texas Court
of Criminal Appeals on July 15, 1998.

14. The
petition also indicates that Mr. Moreno Ramos pursued post-conviction
proceedings before the U.S. federal courts. In particular, he filed a
petition for a writ of habeas corpus in the Federal District Court for
the Southern District of Texas on April 2, 1999, which denied his
petition on March 2, 2000. Mr. Moreno Ramos then appealed this decision
to the Fifth Circuit Court of Appeals on May 31, 2000, which denied
relief on February 14, 2001, and the U.S. Supreme Court denied Mr.
Moreno Ramos’ petition for a writ of certiorari in respect of this
decision on October 7, 2002.

15. The
Petitioners acknowledge that, with one exception, the legal claims
raised in their petition have not been presented to the courts of the
United States, in the proceedings described above or otherwise. They
suggest, however, that Mr. Moreno Ramos should be excused from
exhausting on these issues, on the ground that the United States failed
to afford due process of law for the violations alleged. More
particularly, the Petitioners claim that Mr. Moreno Ramos was in no way
to blame for his failure to exhaust these arguments, but rather fell
victim to his lawyers’ incompetence. The Petitioners contend that Mr.
Moreno Ramos’ trial counsel was unprepared and ineffective and therefore
failed to present any mitigating evidence at the penalty phase of the
trial, made no attempt to convince the jury to sentence Mr. Moreno Ramos
to life imprisonment, and failed to preserve the international arguments
now raised before the Commission by raising them at that stage. Mr.
Moreno Ramos’ attorney on appeal similarly failed to raise these claims.
The Petitioners state in this regard that Texas has long provided
incompetent lawyers for defendants facing capital murder charges and,
unlike other states, has no central agency responsible for providing
specialized representation in death penalty cases.[2]

16.
Further in this regard, the Petitioners argue that any attempt to
exhaust his domestic remedies by raising new legal arguments, such as
the violation of Article 36 of the Vienna Convention on Consular
Relations, ineffective assistance of counsel at the penalty phase, the
admission of an uncharged offense, or the discriminatory remarks of the
prosecution in this case, would be fruitless, as state and federal
legislation stringently limits the ability of individuals to bring
“successive” or “subsequent” post-conviction application.[3]
With respect to the claim under Article 36 of the Vienna Convention on
Consular Relations in particular, Mr. Moreno Ramos’ attorney failed to
object to this violation at the time of trial and the Petitioners claim
that as a result the legal argument was waived and it could not be
challenged in any subsequent proceedings.[4]

17.
Based upon these submissions, the Petitioners argue that requiring Mr.
Moreno Ramos to file a second post-conviction application at this
juncture would serve only to delay the Commission’s review of his
arguments, would fail to protect Mr. Moreno Ramos from illegal
execution, and indeed would enhance the likelihood that Mr. Moreno Ramos
will be executed before the Commission is able to process his petition.

18.
Finally, the Petitioners contend that the facts raised in the Petition
are largely undisputed and therefore that Mr. Moreno Ramos has
established prima facie violations of Articles I, II, XV, XVIII
and XXVI of the American Declaration. In particular, the Petitioners
claim that the United States failed to notify Mr. Moreno Ramos of his
rights to consular notification and access at the time of his arrest in
violation of Article 36 of the Vienna Convention on Consular Relations,
that prosecutors introduced evidence of a crime for which Mr. Moreno
Ramos was neither tried nor convicted at the penalty phase of his trial,
that Mr. Moreno Ramos was denied a fair trial because his attorneys
failed to investigate or present any mitigating evidence at the penalty
phase of his trial, that prosecutors made inflammatory arguments at the
sentencing phase of the trial designed to draw jurors’ attention to Mr.
Moreno Ramos’ status as an undocumented Mexican immigrant, and that the
trial court failed to instruct jurors that Mr. Moreno Ramos would not be
eligible for parole for 35 years if given a life sentence.

19. In
their March 28, 2003 observations on the State’s response to their
petition, the Petitioners claim that the exhaustion of domestic remedies
requirement should be excused in this case, because the legislation of
the United States fails to afford due process for the protection of the
rights allegedly violated, and because the party alleging the violation
has been hindered in his access to the domestic remedies. In
particular, the Petitioners argue that United States legislation imposes
severe limitations on the ability of death row inmates to obtain
judicial review, and that it is no longer true that multiple courts will
carefully and meticulously scrutinize the procedural fairness of the
original trial and the quality of the evidence supporting a death
sentence.[5]
They also indicate that no domestic recourse is available to Mr. Moreno
Ramos apart from executive clemency, but that in Texas, clemency review
provides no meaningful review whatsoever.[6]

20. The
Petitioners also argue that the United States has further hindered Mr.
Moreno Ramos in obtaining access to domestic remedies by providing him
with incompetent and poorly trained, court-appointed lawyers who failed
to raise meritorious claims at trial, on appeal and in state and federal
post-conviction proceedings. They assert that Mr. Moreno Ramos, as an
indigent, foreign defendant, had no means to retain legal counsel and
was entirely dependent on his court-appointed lawyers to fulfill their
constitutional function and provide a vigorous defense. The Petitioners
also claim that Texas has no state-wide agency responsible for providing
specialized representation in capital cases, that a great majority of
lawyers who handle death penalty cases in Texas are sole practitioners
lacking the experience and resources necessary to properly defend their
clients, and that as a result capital defendants frequently receive
deficient legal representation. In Mr. Moreno Ramos’ case, the
Petitioners assert that none of his lawyers, during trial, appeal, or in
post-conviction proceedings, conducted a mitigation investigation or
raised any claims that were not already on the record. The Petitioners
also argue that Mr. Moreno Ramos cannot be faulted for the failings of
his appointed counsel, which they claim constitute discrete violations
of Articles I, XVIII and XXVI of the American Declaration.

21.
Further, the Petitioners argue that requiring Mr. Moreno Ramos to
exhaust domestic remedies would be futile, because procedural obstacles
of the State’s own devising preclude the domestic courts from hearing
the claims that Mr. Moreno Ramos wishes to raise. Rather, it would
require a court to re-open a procedure that was previously completed,
which, according to the Petitioners, is so unlikely under United States
law that it cannot be deemed an adequate and effective remedy requiring
exhaustion.[7]

22. The
Petitioners also argue that a claim of denial of due process guarantees
falls within the Commission’s competence, including due process
deficiencies stemming from violations of the right to consular
information and notification.[8]
They point out in this regard that the United States does not dispute
that it failed to provide consular notification to Mr. Moreno Ramos
without delay, but attempts to minimize the effects of the failure of
consular notification on Mr. Moreno Ramos’ case through unsupported
conjecture as to what Mexican consular officials would or would not have
done had the violations not occurred. The Petitioners assert that to
the extent that such speculation is relevant, it falls within the merits
determination rather than admissibility. They also note that by the
time Mexican consular officials learned of Mr. Moreno Ramos’ detention,
jury selection was already underway, at which point there was no time
left for trial preparation, development of defense themes, and
investigation of previously-unexplored mitigating evidence.

23.
Further, the Petitioners assert, contrary to the State’s submissions,
that the clemency process in the state of Texas cannot be considered
sufficient to provide “review and reconsideration” of Vienna Convention
violations as required by the International Court of Justice in its
LaGrand decision, but rather that such review and reconsideration must
be judicial in nature. The Petitioners argue that clemency procedures
are entirely discretionary, non-reviewable and subjective and therefore
fail to constitute reasonable, consistent and effective remedies
necessary to remedy breaches of the state’s international obligations.

24.
Moreover, the Petitioners dispute the State’s contention that Mr. Moreno
Ramos’ petition is inadmissible as a duplication of procedures due to
the recent proceedings instituted by Mexico before the International
Court of Justice in the Case of Avena and other Mexican Nationals
(Mexico v. United States). They assert in this regard that the ICJ
proceeding fails to satisfy the elements of Article 33(1) of the
Commission’s Rules of Procedure governing duplication, or fall within
one of the exceptions under Article 33(2), on three interrelated
grounds. They first assert that the application before the ICJ cannot
be described as an “individual petition”, as only states, and not
individuals, have standing before the ICJ and Mexico has no mandate from
Mr. Moreno Ramos. For the same reasons, the Petitioners assert that Mr.
Moreno Ramos cannot be said to have a case “pending settlement” before
the ICJ. They note in this regard that Mr. Moreno Ramos’ case is one of
51 individual cases cited by Mexico to “illustrate the systemic nature
of the United States’ violation of Article 36 in capital cases” and in
which Mexico is seeking restitutio in integrum in its own right,
and argue that there is no assurance that any eventual ICJ judgment on
the merits will lead to an effective settlement that would specifically
address the claims raised by Mr. Moreno Ramos.

25.
Further, the Petitioners argue that subject matter of Mexico’s ICJ
application cannot be said to duplicate the range of claims raised by
Mr. Moreno Ramos before the Commission, as the ICJ proceeding is a
dispute between states over the interpretation and application of the
Vienna Convention on Consular Relations, while Mr. Moreno Ramos has
alleged that he is the victim of violations of the American Declaration,
the latter of which the ICJ has no mandate to address. The Petitioners
also contend that the subject matter of Mr. Moreno Ramos’ complaint
before the Commission is not limited to claims stemming from the
violation of his consular rights, but include other claims relating to
Mr. Moreno Ramos’ due process rights, including the introduction of
prior unadjudicated offenses during the sentencing phase of his trial,
and therefore his Commission claim cannot be said to essentially
duplicate the ICJ proceedings.

26. The
Petitioners also submit that Mr. Moreno Ramos’ complaint before the
Commission cannot be considered to duplicate the ICJ application based
upon the Commission’s case law interpreting Article 33 of its Rules, as
the two proceedings cannot be said to address the same legal claims and
guarantees, do not involve the same facts and only tangentially address
the same person.[9]

27.
Alternatively, the Petitioners argue that if the Commission is not yet
persuaded that the petition satisfies the exceptions to the duplication
provision of its rules, it should defer its treatment of admissibility
until the debate and decision on the merits of the case as provided for
in Article 37(3) of the Commission’s Rules.

28.
Finally, the Petitioners emphasize that, in accordance with
jurisprudence of the Commission and the Inter-American Court, Mr. Moreno
Ramos’ petition must receive heightened scrutiny because of the enhanced
due process protections required in capital cases. The Petitioners
assert that the due process issues raised in Mr. Moreno Ramos petition
are precisely those that have required both heightened scrutiny and a
meaningful remedy in past cases, and that the legitimacy of the judgment
against Mr. Moreno Ramos’ rests upon the legitimacy of his process. In
this respect, the Petitioners argue that where due process requirements
have not been complied with, a death sentence and its execution are both
rendered arbitrary, and accordingly, were the State to attempt to
execute Mr. Moreno Ramos based upon the criminal proceedings for which
he is presently convicted and sentenced, this would constitute an
arbitrary deprivation of his life contrary to Article I of the American
Declaration.

B. Position of
the State

29. In
its February 13, 2003 response to the Petitioners’ petition, the State
argues that the Commission should declare the Petitioners’ claims
inadmissible on five grounds, namely that Mr. Moreno Ramos has failed to
exhaust his domestic remedies, the Commission is not competent to
entertain Mr. Moreno Ramos’ claim under Article 36 of the Vienna
Convention on Consular Relations, Mr. Moreno Ramos’ claim on consular
notification is pending before the International Court of Justice and is
therefore inadmissible for duplicity, Mr. Moreno Ramos’ due process
claims are without merit, and the petition fails to state facts that
constitute a violation of principles under the American Declaration.

30. The
State first provides an accounting of the factual and procedural history
to the case, according to which a Texas jury found Roberto Moreno Ramos
guilty in 1993 of the 1992 murders of his wife, Leticia, and his two
youngest children, Abigail and Jonathan. According to the State:

[. . .] Mr. Moreno
Ramos slew his wife and children with a sledge hammer and then buried
their bodies under the bathroom floor. An investigation in the United
States and Mexico revealed that Mr. Moreno Ramos had planned to marry a
woman with whom he had been having an extramarital relationship. On
February 7, 1992, a neighbor heard a woman’s scream and Mr. Moreno
Ramos’ wife and children were never seen again. Three days later, Mr.
Moreno Ramos married his lover. With his consent and pursuant to two
search warrants, authorities searched his home and found blood
throughout the house. They also found a blood-stained sledge hammer at
his new wife’s home in Mexico. Moreno Ramos was elusive about his
family’s exact whereabouts. Later he admitted to authorities to killing
only his wife, even though his wife and children died from similar
injuries to the head inflicted with a similar weapon and had been buried
together.

Law enforcement
officials questioned Moreno Ramos on March 30, 1992 regarding the
reported disappearance of his wife and children. Moreno Ramos
voluntarily accompanied law enforcement officials to the police station
where officers read him his Miranda rights before questioning
him, telling him that he had a right to legal counsel and to remain
silent. After questioning, officers learned of an outstanding arrest
warrant for Moreno Ramos for traffic violations and arrested him. From
there, he was indicted for murder, tried, and sentenced.[10]

31. The State also
indicated that Mr. Moreno Ramos was sentenced to death in accordance
with the provisions of the Texas Penal Code and that his appeal from his
conviction was dismissed by the Texas Court of Criminal Appeal on June
26, 1996, with the U.S. Supreme Court refusing certiorari on April 28,
1997.[11]
Mr. Moreno Ramos also pursued a writ of habeas corpus before the state
courts, which was dismissed by the Texas Court of Criminal Appeals on
July 15, 1998, and before the federal courts, which was dismissed by the
Federal District Court for the Southern District of Texas on March 2,
2000, followed by the US Court of Appeals for the Fifth Circuit on
February 14, 2001, and the U.S. Supreme Court denied certiorari on
October 7, 2002.[12]

32. Concerning the
admissibility of Mr. Moreno Ramos’ claims, the State argues that Mr.
Moreno Ramos has failed to exhaust his remedies within the United States
judicial system. In particular, the State notes the Petitioners’
acknowledgement that only one of the five claims raised before the
Commission was raised in United States courts. The State argues that
Mr. Moreno Ramos has had since 1993 to raise these claims, and that his
claim concerning the failure to advise him of the right to consular
assistance could have been raised by him at trial, as it must have been
known to his defense lawyer as well as to Mexican consular officials who
became aware of his case before his trial. Further, the State argues
that Mr. Moreno Ramos’ remaining claims, relating to the introduction of
evidence of unadjudicated offenses, ineffective assistance of counsel,
and inflammatory arguments at the sentencing phase of the trial, could
have and should have been raised by him in his initial appeals from
conviction and sentence. The State also contends that Mr. Moreno Ramos
admitted that he failed to raise his ineffective assistance of counsel
claim in court and therefore waived it.

33. In addition,
the State disputes the Petitioners’ contention that exhausting his
domestic remedies by raising new legal arguments at this stage would be
fruitless, on the basis that the role of United States courts is not to
second-guess lawyers’ trial strategies and will not raise issues if
parties do not raise them. The State argues that if a petitioner does
not raise an issue before a court, it deprives the court of the
opportunity to consider it, and that the United States, as a matter of
sovereignty, has the right to hear all claims before they are taken to
an international forum. In this respect, the State contends that
international tribunals were not intended to replace national
adjudication, and that the failure of Mr. Moreno Ramos to raise his
claims within the national system when he had opportunity to do so was a
fatal flaw to the admissibility of his petition.

34. The State also
argues that Mr. Moreno Ramos has no additional remedy under the
Convention for not receiving consular notification because the
Commission is without competence to review claims brought under the
Vienna Convention on Consular Relations. The State asserts in this
regard that it disagrees with Advisory Opinion OC-16/99 of the
Inter-American Court of Human Rights that a failure of consular
notification is a violation of human rights or of due process of law.
Alternatively, the State contends that the Petitioners’ reasoning as to
the alleged violation of Article 36(1)(b) of the VCCR is flawed because
consular officials were in fact aware of Mr. Moreno Ramos’ situation by
the time of his trial and were able to attend the trial and provide
assistance at that time. Correspondingly, the State claims that Mr.
Moreno Ramos can identify no point in time in either the trial or
appellate proceedings when he was denied access to a remedy within the
meaning of Article 37(2)(b) of the Commission’s Rules. The State also
argues that the Petitioners have failed to demonstrate that Mexican
consular officials did anything other than let the trial proceed while
they sat and listened, or that they would have provided any greater
degree of assistance has they learned of his situation sooner.

35. Further, the
State contends that the text and negotiation history of the VCCR fail to
support any argument by the Petitioners, based on the decision of the
International Court of Justice in the LaGrand case, that the Convention
requires the United States and other states parties to the Convention to
amend their internal law to provide for an automatic remedy of changing
a sentence when there is a failure to advise of the right of consular
notification. In any event, the State argues that the Petitioners’
claim is consistent with the International Court of Justice’s conclusion
that, in cases of violations of Article 36 in which foreign nationals
are convicted and sentenced to severe penalties, the United States is
expected to provide “review and reconsideration of the conviction and
sentence” and that such review and reconsideration should be “by means
of the [United States’] own choosing.” The State asserts in this regard
that it has been providing review and reconsideration in accordance with
the LaGrand decision and will continue to do so. Concerning Mr. Moreno
Ramos’ case in particular, the State alleges that the United States
Department of State has already informed the Office of the Governor of
Texas of the consular relations issue and asked him to investigate the
case,[13]
that the Hidalgo County (Texas) District Court judge agreed to hear the
Mexican General Consul’s concerns regarding Mr. Moreno Ramos, and that
if he so wishes, he can seek review and reconsideration of his sentence
through the established parole process of the State of Texas.

36. The
United States also opposes the admissibility of the Petitioners’
petition on the ground of duplication. In particular, the State
indicates that on February 5, 2003, the International Court of Justice
issued a provisional measures order with respect to Mr. Moreno Ramos and
two other Mexican nationals who are subject to the death penalty and who
allegedly were not advised in a timely manner of their right to request
consular notification.[14]
The State also indicated that the Court has not yet entertained Mr.
Moreno Ramos’ case, presented by Mexico, on the merits. In these
circumstances, the State argues that consideration of Mr. Moreno Ramos’
petition by the Commission would result in a duplication of effort and
expense by international tribunals, and therefore that the petition
should be deemed inadmissible as duplicative.

37.
Finally, the State argues that the merits of the petition are manifestly
groundless and should also be rejected as inadmissible on this basis.
In particular, the State rejects the Petitioners’ contention that Mr.
Moreno Ramos was denied due process at various stages in the
proceedings. According to the State, the record clearly reflects that
Mr. Moreno Ramos was afforded due process consistent with the U.S.
Constitution and all applicable international norms, through review by
the Hidalgo County District Court, the Federal District Court for the
Southern District of Texas, the Texas Court of Criminal Appeals on two
occasions, the Fifth Circuit Court of Appeals, and the United States
Supreme Court on two occasions.[15]
The State also reiterated its contention in this regard that there is
no sound basis for asserting that a failure to advise a foreign national
of his right to have his consular officials notified of his arrest or
detention is a violation of the due process rights of the accused, and
that the Inter-American Court’s Advisory Opinion OC-16/99 is
fundamentally wrong to the extent that it suggests otherwise. Further,
the State argues that Mr. Moreno Ramos’ sentence does not violate the
right to life under Article I of the American Declaration, because
capital punishment for the most serious crimes is consistent with
international law, including applicable human rights treaties, when
carried out in accordance with due process. As Mr. Moreno Ramos’ crime
was sufficiently heinous to merit a death sentence, and as he received
all appropriate due process, he has not been the victim of a violation
of Article I of the Declaration.

IV.ANALYSIS

38. Upon
considering the record before it, the Commission considers that is has
competence ratione personae to entertain the claims in the
present petition. Under Article 23 of the Rules of Procedure of the
Commission, the Petitioners are authorized to file complaints alleging
violations of rights protected under the American Declaration of the
Rights and Duties of Man. The alleged victim, Mr. Roberto Moreno Ramos,
is a person whose rights are protected under the American Declaration,
the provisions of which the State is bound to respect in conformity with
the OAS Charter, Article 20 of the Commission’s Statute and Article 49
of the Commission’s Rules of Procedure. The United States has been
subject to the jurisdiction of the Commission since June 19, 1951, the
date on which it deposited its instrument of ratification of the OAS
Charter.

39. The Commission
also considers that it is competent ratione temporis to examine
the complaints because the petition alleges facts that occurred on and
after March 30, 1992, the date on which Mr. Moreno Ramos was arrested by
the police after being questioned regarding the disappearance of his
wife and children. The facts alleged therefore occurred subsequent to
the date on which the United States’ obligations under the American
Declaration took effect.

40. In addition,
the Commission finds that it is competent ratione loci, given
that the petition indicates that Mr. Moreno Ramos was under the
jurisdiction of the United States at the time the alleged events
occurred, which reportedly took place within the territory of that
State.

41. Finally, with
regard to the competence ratione materiae of the Commission in
the present proceeding, the State has contended that the Commission
lacks jurisdiction to entertain the Petitioners’ claims concerning Mr.
Moreno Ramos’ failure to receive consular notification because the
Commission was fundamentally established to hear petitions and
communication regarding the American Convention and the American
Declaration, not the Vienna Convention on Consular Relations. In this
respect, the State indicates that it does not agree with the finding by
the Inter-American Court in its Advisory Opinion OC-16/99 that failure
of consular notification is a violation of human rights or of due
process.

42. In considering
the State’s objection on this point, the Commission observes that in its
October 2002 decision in the case of Martinez Villareal v. United
States, the Commission determined that it was appropriate to
consider compliance by a state party to the Vienna Convention on
Consular Relations with the requirements of Article 36 of that treaty in
interpreting and applying the provisions of the American Declaration to
a foreign national who has been arrested, committed to prison or to
custody pending trial, or is detained in any other manner by that
state. In particular, the Commission found that it could consider the
extent to which a state party has given effect to the requirements of
Article 36 of the Vienna Convention on Consular Relations for the
purpose of evaluating that state’s compliance with a foreign national’s
due process rights under Articles XVIII and XXVI of the American
Declaration.[16]
In reaching this conclusion, the Commission found support in the
Inter-American Court’s Advisory Opinion 16/99 on the Rights to
Information on Consular Assistance in the Framework of the Guarantees of
the Due Process of Law, as well as from the judgment of the
International Court of Justice in the LaGrand Case.[17]
Based upon the information and arguments before it in the present
complaint, the Commission sees no reason to depart from its conclusions
in this regard. The State did not challenge the Commission’s subject
matter jurisdiction to entertain the other claims raised by the
Petitioners’ complaint.

43. Accordingly,
the Commission considers that it is competent ratione materiae to
examine the Petitioners’ claims of violations of Articles II, XVII,
XVIII and XXVI of the American Declaration, including any implications
that the State‘s alleged non-compliance with Article 36 of the Vienna
Convention on Consular Relations may have had upon Mr. Moreno Ramos’
rights to due process and to a fair trial.

B.
Duplication

44. Article 33 of
the Commission’s Rules of Procedure provides as follows:

1. The
Commission shall not consider a petition if its subject matter:

a. is pending
settlement pursuant to another procedure before an international
governmental organization of which the State concerned is a member; or,

b. essentially
duplicates a petition pending or already examined and settled by the
Commission or by another international governmental organization of
which the State concerned is a member.

2. However, the
Commission shall not refrain from considering petitions referred to in
paragraph 1 when:

a. the procedure
followed before the other organization is limited to a general
examination of the human rights situation in the State in question and
there has been no decision on the specific facts that are the subject of
the petition before the Commission, or it will not lead to an effective
settlement; or,

b. the
petitioner before the Commission or a family member is the alleged
victim of the violation denounced and the petitioner before the other
organization is a third party or a nongovernmental entity having no
mandate from the former.

45. The State has
objected to the admissibility of Mr. Moreno Ramos’ petition on the
ground that its subject matter is pending settlement pursuant to another
procedure before an international governmental organization of which the
state concerned is a member, or essentially duplicates a petition
pending or already examined and settled by the Commission or by another
international governmental organization of which the state concerned is
a member, contrary to Article 33(1) of the Commission’s Rules of
Procedure. In particular, the State argues that Mr. Moreno Ramos’
situation is one of numerous cases incorporated by Mexico in a
proceeding recently brought by that state before the International Court
of Justice against the United States pursuant to the Vienna Convention
on Consular Relations Optional Protocol Concerning the Compulsory
Settlement of Disputes, namely the case of Avena and other Mexican
Nationals (Mexico v. United States). The State suggests that the same
issues have been raised before the ICJ as are contained in the
Petitioners’ petition, and therefore consideration of the petition by
the Commission “would result in a duplication of effort and expense by
international tribunals.”

46. The
Petitioners have disputed the State’s contention, essentially on the
basis that the proceeding before the ICJ does not constitute a
proceeding to which Article 33(1) of the Commission’s Rules applies, and
alternatively that the exceptions to the duplication requirement under
Article 33(2) of the Commission’s Rules would permit the Commission to
examine the petition notwithstanding the ICJ proceeding.

47. In light of
the provisions of Article 33 of its Rules of Procedure, the Commission
must first determine whether Mr. Moreno Ramos’ petition may fall within
the terms of Article 33(1), because the subject matter of his complaint
is pending settlement before another international governmental
organization of which the United States is a member, or because it
essentially duplicates a petition pending before such an organization.
In this regard, the Commission first concludes that the International
Court of Justice, as an organ of the United Nations whose competence the
United States has accepted through the Optional Protocol to the Vienna
Convention on Consular Relations concerning the Compulsory Settlement of
Disputes,[18]
constitutes an international governmental organization within the
meaning of Article 33(1) in the circumstances of the present case.

48. In order to
determine whether the subject matter of Mr. Moreno Ramos’ complaint
before the Commission duplicates the proceeding before the ICJ, the
Commission must first set forth its understanding of the nature and
subject matter of the proceeding before the ICJ. According to the
Application filed by Mexico against the United States in the Avena Case,
the proceeding relates to 54 Mexican nationals who were arrested,
detained, tried, convicted and sentenced to death in various states in
the United States following proceedings in which Mexican authorities
contend competent authorities failed to comply with their obligations
under Article 36(1)(b) of the Vienna Convention on Consular Relations.[19]
It is apparent from Mexico’s Application that an individual having the
name Roberto Moreno Ramos has been included as one of the 54 Mexican
nationals referred to in its proceeding.[20]
There appears to be no disagreement between the parties that the
individual named in the ICJ proceeding is also the alleged victim in the
present proceeding before the Commission. Indeed, the ICJ Application
explicitly refers to the fact that Mr. Moreno Ramos filed a petition
with the Commission in November 2002.

49. In its
Application, the Government of the United Mexican States has requested
the ICJ to adjudge and declare:

(1) that the United
States, in arresting, detaining, trying, convicting, and sentencing the
54 Mexican nationals on death row described in this Application,
violated its international legal obligation to Mexico, in its own right
and in the exercise of its right of consular protection of its
nationals, as provided by Articles 5 and 36, respectively on the Vienna
Convention;

(2) that Mexico is
therefore entitled to restitution in integrum;

(3) that the United
States is under an international legal obligation not to apply the
doctrine of procedural default, or any other doctrine of its municipal
law, to preclude the exercise of the rights afforded by Article 36 of
the Vienna Convention;

(4) that the United
States is under an international legal obligation to carry out in
conformity with the forgoing international legal obligations any future
detention of or criminal proceeding against the 54 Mexican nationals on
death row or any other Mexican national in its territory, whether by a
constituent, legislative, judicial, or other power, whether that power
holds a superior or a subordinate position in the organization of the
United States, and whether that power’s functions are international or
internal in character;

(5) that the
right to consular notification under the Vienna Convention is a human
right;

and that, pursuant to
the foregoing international legal obligations,

(1) the United
States must restore the status quo ante, that is, re-establish
the situation that existed before the detention or, proceeding against,
and convictions and sentences of, Mexico’s nationals in violation on the
United States international legal obligations;

(2) the United
States must take the steps necessary and sufficient to ensure that the
provisions of its municipal law enable full effect to be given to the
purposes for which the rights afforded by Article 36 are intended;

(3) the United
States must take the steps necessary and sufficient to establish a
meaningful remedy at law for violations of the rights afforded to Mexico
and its nationals by Article 36 of the Vienna Convention, including by
barring the imposition, as a matter of municipal law, of any procedural
penalty for the failure timely to raise a claim or defence based on the
Vienna Convention where competent authorities of the United States have
breached their obligation to advise the national of his or her right
under the Convention; and

(4) the United States,
in light of the pattern and practice of violations set forth in this
Application, must provide Mexico a full guarantee of the non-repetition
of the illegal acts.[21]

50. It is also
pertinent to observe that according to the international instruments
governing the proceeding before the ICJ, in particular the Statute of
the ICJ and the Optional Protocol to the Vienna Convention on Consular
Relations, states are the only permissible parties to the proceedings.[22]
Further, the Petitioners have stated that Mexico has no mandate from
Mr. Moreno Ramos and has brought its claim before the ICJ in its own
right, which the United States has not disputed. In addition, it is
evident that in addition to allegations that the United States violated
Mr. Moreno Ramos’ right to consular information and notification and
according his right to due process under Article XXVI of the
Declaration, the Petitioners have claimed before the Commission due
process violations based upon the quality of his legal representation
and the nature of evidence introduced during the penalty phase of his
capital proceedings.

51. In considering
the State’s objection, the Commission notes that it is for the State, as
the party raising the objection, to substantiate the juridical
requirements of duplication before the Commission. In this respect, the
Commission takes into consideration its previous jurisprudence according
to which a prohibited instance of duplication under the Commission’s
procedures involves, in principle, the same person, the same legal
claims and guarantees, and the same facts adduced in support thereof.[23]
Correspondingly, claims brought in respect of different victims, or
brought regarding the same individual but concerning facts and
guarantees not previously presented and which are not reformulations,
will not in principle be barred by the prohibition of duplication of
claims.[24]

52. In the present
case, the Commission considers on the information available that it
cannot be said that the same parties are involved in the proceedings
before the Commission and the ICJ, or that the proceedings raise the
same legal claims and guarantees. In particular, it is evident that Mr.
Moreno Ramos cannot be considered a party to the ICJ claim, as
participants in contentious proceedings before the Court are limited to
states. While the circumstances surrounding his criminal proceedings may
comprise part of the matters considered by the ICJ in determining
Mexico’s application, Mr. Moreno Ramos has no independent standing to
make submissions in the proceeding or to request relief, and there is no
requirement or certainty that Mexico will represent his interests before
the ICJ. The State has not presented any evidence suggesting otherwise.

53. Nor can it be
said that the same legal claims have been raised before both tribunals.
The central issue before the ICJ is whether the United States violated
its international obligations to Mexico under Articles 5 and 36 of the
Vienna Convention on Consular Relations based upon its procedures in
arresting, detaining, convicting, and sentencing 54 Mexican nationals on
death row, including Mr. Moreno Ramos. The issue before the Commission,
on the other hand, is whether the United States violated Mr. Moreno
Ramos’ rights to due process and to a fair trial under Articles XVIII
and XXVI of the American Declaration, based upon five main grounds: the
failure to provide Mr. Moreno Ramos with his right to consular
information and notification under Article 36 of the Vienna Convention
on Consular Relations; the provision of incompetent defense counsel in a
capital case; the prosecution’s introduction of an unadjudicated offense
to secure a death sentence; inflammatory arguments made by the
prosecutors at the sentencing phase of Mr. Moreno Ramos’ trial; and
errors in the trial judge’s instructions to the jury. In the
Commission’s view, the Petitioners’ petition before the Commission
raises substantive issues that are distinct from those presented by
Mexico to the International Court of Justice.

54. While the
claims in both proceedings are similar to the extent that they require
consideration of compliance by the United States with its obligations
under Article 36 of the Vienna Convention, this matter is raised in two
different contexts: the ICJ is asked to adjudicate upon the United
States’ international responsibility to the state of Mexico for
violations of the VCCR, while this Commission is asked to evaluate the
implications of any failure to provide Mr. Moreno Ramos with consular
information and notification for his individual right to due process and
to a fair trial under the American Declaration of the Rights and Duties
of Man. This contextual discrepancy highlights the broader distinction
between the mandate and purpose of the ICJ and the Commission. The
function of the ICJ, as defined through Article I of the Optional
Protocol to the Vienna Convention on Consular Relations, is to settle,
as between states, disputes arising out of the interpretation and
application of the Vienna Convention on Consular Relations. This
Commission, on the other hand, is the principal human rights organ of
the Organization of American States charged with promoting the
observance and protection of human rights in the Americas, which
includes determining the international responsibility of states for
alleged violations of the fundamental rights of persons.

55. Based upon the
foregoing, the Commission considers that the Petitioners’ petition does
not duplicate the Avena proceeding before the International Court of
Justice within the meaning of Article 33(1) of the Commission’s Rules,
and therefore finds no bar to the admissibility of the Petitioners’
claims on the ground of duplication.

C. Exhaustion
of Domestic Remedies

56. Article 31(1)
of the Commission's Rules of Procedure specifies that, in order to
decide on the admissibility of a matter, the Commission must verify
whether the remedies of the domestic legal system have been pursued and
exhausted in accordance with generally recognized principles of
international law. Article 31(2) of the Commission's Rules of Procedure
specifies that this requirement does not apply if the domestic
legislation of the state concerned does not afford due process of law
for protection of the right allegedly violated, if the party alleging
the violation has been denied access to domestic remedies or prevented
from exhausting them, or if there has been an unwarranted delay in
reaching a final judgment under the domestic remedies.

57. In addition,
the Inter-American Court of Human Rights has observed that domestic
remedies, in order to accord with generally recognized principles of
international law, must be both adequate, in the sense that they must be
suitable to address an infringement of a legal right, and effective, in
that they must be capable of producing the result for which they were
designed.[25]

58. Further, when
a petitioner alleges that he or she is unable to prove exhaustion,
Article 31(3) of the Commission’s Rules of Procedure provides that the
burden then shifts to the State to demonstrate that the remedies under
domestic law have not been previously exhausted, unless that is clearly
evident from the record.

59. In the present
case, the Petitioners have acknowledged that, with one exception, namely
Mr. Moreno Ramos’ argument that the state trial court erred by failing
to instruct jurors regarding his parole eligibility, the legal claims
raised in their petition have not been presented to the courts of the
United States. They suggest, however, that Mr. Moreno Ramos should be
excused from exhausting on these issues, on the ground that the United
States failed to afford due process of law for the violations alleged.
More particularly, the Petitioners claim that Mr. Moreno Ramos’ failure
to exhaust these arguments resulted from the incompetence of his
attorneys at trial and on appeal, who failed to raise these issues or
otherwise preserve them for further consideration before the domestic
courts. In addition, the Petitioners argue that any attempt to exhaust
his domestic remedies by raising new legal arguments, such as the
violation of Article 36 of the Vienna Convention on Consular Relations,
ineffective assistance of counsel as the penalty phase, the admission of
an uncharged offense, or the discriminatory remarks of the prosecution
in this case, would be fruitless, as state and federal legislation
stringently limits the ability of individuals to bring “successive” or
“subsequent” post-conviction applications when they failed to raise
those issues at the initial stages of the criminal process.[26]
With respect to the claim under Article 36 of the Vienna Convention on
Consular Relations in particular, Mr. Moreno Ramos failed to object to
this violation at the time of trial and as a result the Petitioners‘
claim that the legal argument was waived and it could not be challenged
in any subsequent proceedings.[27]

60. In response,
the State has argued that the claims raised before the Commission must
have been known to his defense lawyer and Mexican consular officials at
his trial and therefore could have been raised by him at that time, as
well as in his initial appeals from conviction and sentence. Concerning
Mr. Moreno Ramos’ argument that he did not raise these claims due to the
incompetence of his counsel the State suggests that he also failed to
raise his ineffective assistance of counsel claim in court and therefore
waived it. Specifically with respect to Mr. Moreno Ramos’ claim relating
to Article 36 of the Vienna Convention on Consular Relations, as
discussed above, the State asserts that the Commission is without
competence to review claims brought under that treaty and disagrees with
the finding by the Inter-American Court of Human Rights that a failure
of consular notification is a violation of human rights or of due
process of law.

61. After
considering the parties’ arguments, the Commission first rejects the
State’s contention that the Commission is without jurisdiction to
entertain the Petitioners’ claims relating to the Vienna Convention on
Consular Relations, for the reasons set out in Part IV.(A) above.

62. Concerning the
Petitioners’ contention that Mr. Moreno Ramos should be excused from
exhausting domestic remedies due to the incompetence of his legal
representatives during the proceedings against him, the Commission notes
that one of the claims raised by the Petitioners on the merits of their
petition is that the State is responsible for violating Mr. Moreno
Ramos’ rights to due process and to a fair trial under Articles XVIII
and XXVI of the American Declaration because the state of Texas provided
Mr. Moreno Ramos with incompetent attorneys. They claim that at every
stage of Mr. Moreno Ramos’ criminal proceedings, his attorneys’
performance fell outside of the range of professionally competent
representation. Moreover, the State has failed to present any evidence
or information indicating that the Petitioners’ claims in this regard
may be manifestly ill-founded.

63. Given the
interplay between the effective availability to Mr. Moreno Ramos of
domestic procedures and one of the substantive human rights violations
alleged in the merits of the case, namely the competence of Mr. Moreno
Ramos’ trial representation, the Commission considers that the question
of the prior exhaustion of these remedies must be taken up with the
merits of the case.[28]
Accordingly, the Commission will join this aspect of the exhaustion of
domestic remedies question to the merits of the case.

D.Timeliness of the Petition

64. The record in
this case indicates that the Petitioners' petition was lodged with the
Commission on November 4, 2002, and therefore within six months from the
October 7, 2002 dismissal by the U.S. Supreme Court of his petition for
the writ of certiorari. The State has not contested the admissibility
of the petition on the ground of timeliness. Accordingly, the
Commission finds that the petition is not barred from consideration
under Article 32 of the Commission's Rules of Procedure.

E. Colorable
Claim

65. Article 27 of
the Commission’s Rules of Procedure mandates that petitions state facts
“regarding alleged violations of the human rights enshrined in the
American Convention on Human Rights and other applicable instruments.”
In addition, Article 34(a) of the Commission’s Rules of Procedure
requires the Commission to declare a petition inadmissible when it does
not state facts that tend to establish a violation of the rights
referred to in Article 27 of the Rules.

66. The
Petitioners allege that the State has violated Articles I, II, XXV,
XVIII, and XXVI of the Declaration. The Commission has outlined in Part
III of this Report the substantive allegations of the Petitioners, as
well as information submitted by the Petitioners in support of those
allegations. After carefully reviewing the information and arguments
provided by the Petitioners in light of the heightened scrutiny test
applied by the Commission in capital punishment cases,[29]
and without prejudging the merits of the matter, the Commission
considers that the petition states facts that tend to establish
violations of Articles I, II, XXV, XVIII, and XXVI of the Declaration
and is not manifestly groundless or out of order. Accordingly, the
Commission concludes that the Petitioners' petition should not be
declared inadmissible under Article 34 of the Commission's Rules of
Procedure.

F.
Precautionary Measures

67. According to
the information presently available, Mr. Moreno Ramos’ execution has not
yet been scheduled but could be set by the state at any time. In this
connection, the Commission recalls its jurisprudence concerning the
legal effect of its precautionary measures in the context of capital
punishment cases. As the Commission has previously observed, its
ability to effectively investigate and determine capital cases has
frequently been undermined when states have scheduled and proceeded with
the execution of condemned persons, despite the fact that those
individuals have proceedings pending before the Commission.

68. In order to
prevent this unacceptable situation, it has been the Commission’s
practice to request precautionary measures from states in capital cases
to preserve a condemned prisoner's life and physical integrity until the
Commission has had an opportunity to investigate his or her claims. The
Commission has expressed the view in this regard that OAS member states,
by creating the Commission and mandating it through the OAS Charter and
the Commission's Statute to promote the observance and protection of
human rights of the American peoples, have implicitly undertaken to
implement measures of this nature where they are essential to preserving
the Commission's mandate.

69. As the
Commission has emphasized on numerous occasions, it is beyond question
that the failure of an OAS member state to preserve a condemned
prisoner's life pending review by the Commission of his or her complaint
undermines the efficacy of the Commission's process, deprives condemned
persons of their right to petition in the inter-American human rights
system, and results in serious and irreparable harm to those
individuals. For these reasons, the Commission has determined that a
member state disregards its fundamental human rights obligations under
the OAS Charter and related instruments when it fails to implement
precautionary measures issued by the Commission in these circumstances.[30]

70. In light of
these fundamental principles, and given that the Commission has
determined the claims raised by Mr. Moreno Ramos to be admissible in
accordance with its Rules of Procedure, the Commission hereby reiterates
its request of March 7, 2002 pursuant to Rule 25 of its Rules of
Procedure that the United States take the necessary measures to preserve
Mr. Moreno Ramos’ life and physical integrity pending the Commission’s
determination of the merits of his petition.

V. CONCLUSIONS

71. The Commission
concludes that it has the competence to examine the Petitioners’
allegations, and that the petition is admissible in accordance with the
Commission’s Rules of Procedure.

72. On the basis of the findings of
fact and law set forth above, and without prejudging the merits of the
matter,

THE INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS

DECIDES TO:

1. Declare the
present case admissible, in respect of Articles I, II, XVIII, XXV and
XXVI of the American Declaration.

2.Transmit
this report to the parties.

3.Continue
with the analysis of the merits of the case.

4. Reiterate its
request pursuant to Rule 25 of the Commission’s Rules of Procedure that
the United States take the necessary measures to preserve Mr. Moreno
Ramos’ life and physical integrity pending the Commission’s
determination of the merits of his petition

5. Publish this
report and include it in its Annual Report to the General Assembly of
the Organization of American States.

Done and signed in the
city of Washington, D.C., U.S.A., on the 10th day of the
month of October, 2003. (Signed): José Zalaquett, President; Clare
Roberts, First Vice-President; Susana Villarán, Second Vice-President;
Julio Prado Vallejo, Commissioner.

*Commission
Member Prof. Robert Goldman, a national of the United States, did
not take part in the discussion and voting on this case, in
accordance with Article 17(2) of the Commission's Rules of
Procedure.

[2]
Petitioners’ petition dated November 2, 2002, p. 5, citing Texas
Defender Service, A State of Denial: Texas Justice and the Death
Penalty at 77-118 (2000).

[3]
Petitioners’ petition dated November 2, 2002, p. 6, citing Tex. Code
Crim. P. 11.071, Sec. 5 (a) (applicant filing subsequent application
must demonstrate that factual or legal basis for the claim was
previously unavailable, and setting forth stringent burden of
proof); 28 U.S.C. § 2244(b)(2) (claim presented in second habeas
corpus application that was not presented in a prior application
shall be dismissed unless the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable). The
Petitioners also note that in August 2002, the Texas Court of
Criminal Appeals and the United Sates Supreme Court refused to
review the case of Javier Suarez Medina, who had filed a petition
with the Commission raising two of the same claims raised by Mr.
Moreno Ramos and who was executed on August 14, 2002 before the
Commission had an opportunity to address his claims.

[6]
Petitioners’ March 28, 2003 Observations Regarding the State’s
response dated February 13, 2003, p. 2, citing Amnesty
International, Clemency Procedures in Texas: Killing without Mercy,
AI Index AMR 51/85/99; Death Penalty Information center, http: //
deathpenaltyinfo.org (indicating that as of March 21, 2003, Texas
had executed 300 prisoners since reinstating the death penalty in
1977, but that only one Texas death sentence has been commuted on
humanitarian grounds).

[13]
State’s response dated February 13, 2003, p. 5, citing Letter from
Clyde Howard, Coordinator for Consular Notification, Bureau of
Consular Affairs, U.S. Department of State, to David Zimmerman,
Assistant General Counsel, Office of the Governor of Texas, dated
November 18, 2002; Letter from J. Kevin Paterson, Assistant General
Counsel, Office of the Governor of Texas, to Clyde Howard,
Coordinator for Consular Notification, Bureau of Consular Affairs,
U.S. Department of State, dated December 19, 2002.

[17]
Id.,
paras. 65-75, citing I/A Court H.R., Advisory Opinion OC-16/99 of
October 1, 1999, The Right to Information on Consular Assistance in
the Framework of the Guarantees of Due Process of Law, (Ser. A) Nº
16 (1999); International Court of Justice, LaGrand Case (Germany v.
United States), Judgment of June 27, 2001, General List Nº 104.

[18]
In this connection, the United States ratified the Charter of the
United Nations on August 8, 1945 and the Optional Protocol to the
Vienna Convention on Consular Relations concerning the Compulsory
Settlement of Disputes on November 24, 1969. See United Nations
Treaty Data Base, http://untreaty.un.org/,
visited September 24, 2003.

[19]
Avena and other Mexican Nationals (Mexico v. United States of
America), General List Nº 128 (9 January 2003), para. 1 (http://www.icj-cij.org/icjwww/idocket/imus/imusframe.htm).

201. On 30
March 1992, law enforcement authorities in the State of Texas
arrested Mr. Moreno Ramos, aged 37, on suspicion of murder. On 18
March 1993, Mr. Moreno Ramos was convicted of murder and on 23 March
1993, the trial court sentenced him to death.

202. Although
prosecutors made reference to Mr. Moreno Ramos’ s Mexican
nationality during his capital murder trial, the competent
authorities at no time informed him of his rights to consular
assistance. Not having been apprised on these rights, Mr. Moreno
Ramos could not and did not exercise them before his trial.

203. Mexican
consular officials learned of Mr. Moreno Ramos’s detention through
the media in February 1993, approximately 11 months after his
arrest, by which time the trial was already underway. Having been
unaware until that time of Mr. Moreno Ramos’s detention, consular
officials were unable to assist him during his pre-trial detention,
a critical phase of any capital murder trial. Upon learning of his
situation, Mexican consular authorities began rendering assistance,
both legal and otherwise, to Mr. Moreno Ramos.

204. Mr.
Moreno Ramos was denied relief by the Texas Court of Criminal
Appeals, a federal district court, a United States court of appeals,
and the United States Supreme Court. The violation of his Vienna
Convention rights was never raised during his direct or collateral
appeals. On 4 November 2002, Mr. Moreno Ramos filed a petition
alleging violations of his human rights, and a request for
precautionary measures, before the Inter-American Commission on
Human Rights. In his petition, Mr. Moreno Ramos alleges that the
State of Texas violated his right to consular notification, among
other violations of his human rights. The Commission issued
Precautionary Measures on 8 November 2002.

205. As Mr.
Moreno Ramos has exhausted his primary appeals in the United States,
the State of Texas may schedule his execution at any time.)

[22]
Statute of the International Court of Justice, Art. 34(1) (providing
that “[o]nly states may be parties in cases before the Court.”);
Optional Protocol to the Vienna Convention on Consular Relations
concerning the Compulsory Settlement of Disputes, Art. I (providing
that “[d]isputes arising out of the interpretation or application of
the Convention shall lie within the compulsory jurisdiction of the
International Court of Justice and may accordingly be bought before
the Court by an application made by an party to the dispute being a
Party to the present Protocol.”).

[29]According to the Commission's established
jurisprudence, it will review and decide capital punishment cases
with a heightened level of scrutiny, to ensure that any deprivation
of life that an OAS member state proposes to effect through the
death penalty complies strictly with the requirements of the
applicable inter-American human rights instruments. See
Report Nº 57/96 (Andrews v. United States), Annual Report of the
IACHR 1997, paras. 170-171; Report Nº 38/00 (Baptiste v. Grenada),
Annual Report of the IACHR 1999, paras. 64-66; Report Nº 41/00
(McKenzie et al. v. Jamaica), Annual Report of the IACHR 1999, paras.
169-171.